AuthorTopic: Legal Reasoning (Read 175947 times)

After a verbose preamble, which among other things informs you helpfully that "behavior becomes unacceptable when it infringes on the rights of others," the Code of Conduct of the Public Library of the city where I live provides thirty-one examples of unacceptable conduct. These examples can be sorted into five general categories:

After the list of specific examples the Code of Conduct concludes with the American's lawyer's equivalent of the old anti-Soviet slander provision in the USSR's criminal code: "Any unlawful behavior and any other behavior that unreasonably interferes with the safe or reasonable use of the library by the other persons."

This code, posted as it is in prominent places all around the building, is of course a very ordinary document of the kind found throughout the public spaces of America. Normally, neither you nor I would give it more than a glance; and we almost surely wouldn't spare it a second thought. Yet it is in its own quotidian way a remarkable text. Orthodox American rule of law ideology demands that those actions the state has prohibited be made public so that persons may have an opportunity to inform themselves as to what is and is not allowed. Once this condition has been met people may then be held to "know the law" -- ignorance of it being, famously, no excuse. It follows from this that when persons fail to conform their conduct to the law it can be assumed they are "choosing" to violate its publicly announced requirements.

Such at least is the theory. How well does this theory apply to a typical piece of modern bureaucratic regulation? Or the types of behavior the library code prohibits, you might note that only those listed in the first category can be thought to convey useful information to any minimally socialized member of the community. There could be a real reason as to whether you're allowed to bring a bag of pretzels into the library, but do you really require "notice" that you can't snatch purses, expose yourself to patrons, do your laundry in the bathroom, or play high-stakes poker in the reference area? Suppose you hadn't been given notice of any of these things; does it follow you're free to claim as a defense insufficient publicity on the part of the state?

Can there be any non-psychotic person of minimally functional intelligence who would suppose that any of the things on this list, other than those dealt with in the most site-specific regulations, were not prohibited? Of course all social rules include areas of vagueness (which public displays of affection are "excessive?"), but these borderline problems can hardly be cured by posting general proscriptions of the type found in public legal notices. So here we seem to be faced with a wholly superfluous invocation of legal rules: rules that merely reflect tacit social understandings that themselves have no apparent need to be cast into a public legal text.

Note that ultimately the supposed purpose of the library code is to give persons the knowledge they need to exercise a freely willed choice to follow the law. That is, the idea must be that people who would otherwise engage in acts of voyeeurism, or who would stumble into the Public Library under the influence of crack cocaine, will duly note they are prohibited from doing so, and will therefore choose to refrain from indulging in such legally proscribed behavior. These assumptions are -- to put it as charitably as possible -- unwarranted. There is no evidence whatsoever that people in the grip of sexual compulsions or substance addictions need to be informed their behavior is unacceptable; indeed, in the case of voyeurism and exhibitionism, the very unacceptability of the behavior is what sexualizes and thus enables it.

The library's code of conduct also illustrates the characteristic hypertrophy of modern legal reasoning. It's not that legal concepts such as "notice" and "choice" never make sense -- in fact, most of the time they do. It is rather that we tend to employ these sorts of concepts so promiscuously that we lose sight of the relative lack of salience they have to many social situations. For instance, in the context of anti-drug legislation, the common-sense insight that attaching bad consequences to certain actions often deters persons from undertaking those actions is exaggerated out of all reasonable proportion. In a similar vein, the modest idea that talking about their problems sometimes makes people feel better gets blown up into the grand scientific and cultural pretensions of psychotherapeutic ideology. The library code illustrates some of the ways in which otherwise useful modes of analysis can be pushed to a point where the hypertrophied character of what is called "reason" becomes indistinguishable from a form of magical thinking.

Posting a public notice of the unacceptability of theft, or of exhibitionism, or of physical and sexual abuse, is very much like passing yet another law providing still more penalties for the sale of already illegal drugs. Such actions represent our legal culture's equivalent to the practice of nailing garlic over doorways to repel vampires. In each case a psychological imperative born of a sense of lack of control, and of the fear and anxiety this sensation produces, demands of us that we "do something." Those same factors then lead us to do things that appear in the cold light of rational analysis to be almost wholly irrational.

Logged

"When I use a word," Humpty Dumpty said, rather scornfully, "it means just what I choose it to mean -- neither more nor less." "The question is," said Alice, "whether you can make words mean so many different things." "The question is," said Humpty Dumpty, "which is to be master -- that's all."

In America today the juridical saturation of reality becomes more and more of a fact of daily life. And not merely in America: in Europe, for example, the particular political and social cultures of more than a dozen nations are being swallowed up by that monument to the pretensions of technocratic rationality, the European Union. All over the so-called developed world, law is manifesting itself as a kind of cultural madness, whereby hyperrational modes of decision making are employed in a vain attempt to resolve rationally what are rationally irresolvable moral and political conflicts.

The hypertrophied rationalism of American law is a product of trying too hard to be good: of failing to accept that law is always a somewhat crude and potentially destructive social steering mechanism, that works best when it remains a tacit presence in the social background. Instead Americans insist on subjecting themselves to a dictatorship of the bureaucratic: one in which the answer to every important social conflict inevitably involves more rules and procedures, more rights and obligations, more "reasons" and "principled justifications" given in the course of constructing ever-more complex analytic and rhetorical circles for choosing to do this rather than that -- in brief, more law.

Much of the baroque complexity of modern American law represents what is at best a wasteful multiplication of transaction costs, and at worst a symptom of a species of institutionalized mental illness. Much of the basic structure of American law is a pointless or even pathological outgrowth of various rationalist delusions.

The excesses of American rule of ideology are in large part enabled by our unwillingness to accept that reason, when properly employed, works to make its further employment superfluous. Reason, that is, works ironically toward its own effacement. When it works well, it takes the reasoner to a point in the decision process where the use of reason no longer helps. Hence, "legal reasoning" works well precisely to the extent that we are not conscious of its presence. Outside a legal equilibrium zone law tends to be both an invisible and a powerful factor in the maintenance of social cohesion. By contrast within such a zone the inevitable contradictions in the legal rules such situations produce are clearly visible, and as a consequence the rules themselves are rendered relatively useless. Faced with such legal and social contradictions, we can not decide efficiently processed legal diputes on the basis of "reason". We merely decide.

The essential fallacy of legal rationalism is thus to think that what works well in moderation will work even better in large doses. So deep is this belief that when the more extreme manifestations of legal reason fail altogether we tend to manifest a willful blindness to this failure, or we undertake what soon become perverse efforts to perfect systems of rules that, by the nature of the problems they address, can't be perfected. When neither of these strategies work we do what courts often do and simply indulge in magical thinking, assuming, of course, e.g., that because a court ends its opinion with the phrase "it is so ordered," "it" is both going to happen, and to produce a series of predictable social effects.

Because of such rationalist excesses of the American legal system is in some danger of being treated as roughly by the coming decades as the great American railroads were treated by the century that passed. American law, that is, may well find itself betrayed by its own overweening pride in having succeeded in its quest to bring so much of American life under its sway. As a consequence of the legal system's increasing tendency to deny the true nature of its crucial but relatively modest role as a social coordination and dispute processing mechanism, our law is becoming so elaborate, so hypertrophied, so pointlessly complex, and hence so unnecessarily expensive that alternate modes of getting from here to there on the social map are already springing up all around us. Accountants are taking over the tax business; insurance companies are eleminating real dispute processing; mediation and arbitration services of every kind are booming. And of course various militant ideologies of the far right serve as diconcerting reminders of how considerably more radical forms of dissent against what is called the rule of law are already simmering.

Like the donkey of the fable who starves to death because he is exactly equidistant from two stacks of hay and therefore can't decide rationally to which stack he should go, we demand dispositive reasons for choosing where there are none. Less principled than the ass, we than "discover" -- at great fiscal and psychological expense -- some answer that must be arrived at more or less arbitrarily, while still insisting that this particular outcome was impelled by the law, or legal principles, or reason itself.

Logged

"When I use a word," Humpty Dumpty said, rather scornfully, "it means just what I choose it to mean -- neither more nor less." "The question is," said Alice, "whether you can make words mean so many different things." "The question is," said Humpty Dumpty, "which is to be master -- that's all."

Much of the baroque complexity of modern American law represents what is at best a wasteful multiplication of transaction costs, and at worst a symptom of a species of institutionalized mental illness. Much of the basic structure of American law is a pointless or even pathological outgrowth of various rationalist delusions.

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Because of such rationalist excesses of the American legal system is in some danger of being treated as roughly by the coming decades as the great American railroads were treated by the century that passed.

There is a wonderful sketch by the Monty Python comedy troupe called "The Royal Society for Putting Things on Top of Other Things." The Royal Society for Putting Things on Top of Other Things meets annually to evaluate the performance of the group's membership in the carrying out of the Society's mission over the course of the previous year. At the beginning of the sketch the President of the Society calls the meeting to order and notes that he himself, on his way to this very meeting, noticed several things not on top of other things. This announcement is met by cries of "Shame, shame!" which the President calms by pointing out that "if there were not one thing that was not on top of some other thing, we would be nothing but a meaningless group of men who gathered together for no good purpose." Then follow the reports of several chapters ("our Australasian chapter, have in the last year placed no less than twenty-two things on top of other things") that continue until the representative of the Staffordshire chapter causes a sensation by admitting that his group has failed to place a single thing on top of some other thing. When asked by the President to explain this extraordinary behavior, the representative replies meekly, "Well sir, it's just that most of the members in Staffordshire feel the whole thing's a bit silly," to which the outraged President responds, "Silly? What do you mean, silly? Hm ... I suppose it is, a bit. What have we been doing wasting our lives with all this nonsense?" (General cries of "Hear, hear.") "Right then. Meeting adjourned forever."

It should be obvious the Legal Society for Giving Rationally Compelling Reasons isn't going to be adjourning any time soon. The most we can hope for is that some way might be found to make its meetings a little shorter, and the catering bill a little less.

Why all this "reasoning" madness? In the end, overgeneralizations concerning the power of reason and intellectual pretensions born of lawyers' professional vanity are symptoms of fear.

America has never been a fatalistic culture, except to the extent we have always believed it our manifest destiny to be "progesssing" toward something or the other. Faced with the prospect of existential dread at our helplessness before the mysteries of life, we look for someone or something that can dispel that uncanny sensation. Hence, despite our vaunted pragmatism, we are prone to a certain child-like faith that some person or institution will with a single heroic gesture free us from the intolerable webs of uncertainty sorrounding our most difficult choices. In the American law school, the most striking evidence of this faith is the way in which an entire generation of legal academics almost literally worships the Warren Court. The continuing fascination that long-departed institution holds for law professors of a certain age resembles in some ways a collective case of arrested emotional development. The kindly image of Earl Warren himself, with his granfatherly shock of white hair, and his famed willingness to brush aside legal technicalities with the question "But is it right, is it fair?" helps satisfy the longing for some paternal figure in comforting ceremonial garb -- a sort of juridical Santa Claus -- who goes about dispensing justice in much the same way reformed misers in Dickens shower pounds and guineas on everyone they meet.

To paraphrase Samuel Johnson, a man becomes a judge to forget the pain of being a man.

We believe in the transcendent, more-than-human authority of "the rule of law," and by extension of its various fetish objects and their official interpreters, because the alternative would be to accept the authority of ourselves over ourselves.

eray01

On the issue of holding two contradictory beliefs in mind simultaneously, and accepting both of them (doublethink): well, I would suggest you study a bit Zen Buddhism. You know, Zen is a complete difference in perception to the dominant Western worldview. The Western world, dominated by science, has a logical and rational view of life. Contradiction and paradox are frowned upon in this worldview.

1 + 1 = 2 and cannot be 3.

The rational perspective is only one view of life, and not necessarily the most valid. This is not to say that rationality is wrong, but rather that is limited and only one perception that has been historically and geographically prescribed.

Enlightenment as the goal of Zen Buddhism. This again is a very difficult term to describe in a sentence or two. We can understand enlightenment as knowledge of the truth; but this knowledge is not the accumulative and rational knowledge of the West. The word enlightenment is understandable and frequently used in the religions of the West. A monk went to the Zen master wanting to know more about the truth of enlightenment. When he asked this question of the Zen master, the master replied, "Do you hear the sound of that running brook." "Yes, I hear it," answered the monk. "That is the entrance to the truth" the Master replied to him. From this example a number of things should be obvious. Enlightenment is not a form of perception that is mediated by logic or even cause and effect reasoning. It is an immediate and complete clear view and understanding of the nature of reality.

The misconception of self.

One of the obstacles that stand in the way of the initiate trying to enter into Zen understanding is the concept of the self. This is one of the central reasons why Zen is so difficult for the Westerner. Western perceptions of reality are built on the foundation of the Self and the idea of the centrality of the Ego. In terms of understanding Zen, the greatest obstacle to Enlightenment is the Self. The reason for this situation is that the Self is an illusion created by the society, and by the desires and needs of the individual Ego. It is only in moving beyond the Ego that an understanding of the enlightenment can begin. There is an important difference between the terms "Self" and "ego" that must be understood in this regard. For the Eastern Mind the Self is the true self that has been released from the false self of the ego. In other words, the ego is the illusionary element that traps man into a false perception of reality. The Enlightenment is the break-through from the region of the false self into a new consciousness and awareness that is not limited by the ego.

This distinction between the Self and the false ego is not too difficult to understand in ordinary terms. The self, it is widely acknowledged by psychologists and sociologists, is a construction. In other words, the human self is built from social conventions, personal feelings and history and is, in this temporal sense, an illusion. This illusion of the self stands as a barrier between the true Self and a perception of reality. One only has to think of the false ideals like materialism and envy etc, which absorb us in our daily lives, to understand the validity of the Zen perception of no-self. This is a realization that is skirted over by many Western practitioners of Zen, mainly because of its essential difficulty. But, this is also one of the most significant areas of investigation for the Western person wanting to understand Zen. After fully understanding the illusion of the self, the journey into Zen begins. From this point onwards, we enter into the knowledge of Zen without the encumbrance of the baggage of our daily lives or the illusions of our social selves, but rather concentrating on truth as it emerges beyond both objectivity and subjectivity.

Beyond illusion.

Once the journey into Zen begins the dualistic concepts that once imprisoned the mind, fall away. The ideas of birth and death, pain and joy, no longer have any relevance. For the Westerner this is almost a non-sensical world where there seems to be nothing at all. It is precisely this concept of nothingness that is the source, for the Zen Buddhist, of all reality. It is interesting to note that modern science tends to confirm these strange notions. For example, the "Big Bang Theory" of how the universe began is currently one of the contenders for the most legitimate explanation of the start of our Universe. But this theory proposes a moment before the Big Bang where, theoretically, there was nothing. One of the greatest problems in trying to understand Zen from a Western perspective is that Zen is an intensely personal experience. Enlightenment is achieved and recognized as a personal and individual knowledge that cannot be shared in an outward logical sense. In the West, religion is formal and concentrated in the institution of churches. There is a procedure and knowledge in these institutions that must be followed in a public sense. While individual enlightenment is obviously part of institutionalized religion, it must occur within the framework of the Church and its formal arrangements. This is not the case in Zen, where there are no formal elements and the individual initiate and the master find the path to enlightenment without these restrictions and without any external validation process.

In order for us to come to grips with Zen, we often have to use metaphors and seemingly strange examples to help us to understand this attitude towards life. It is a mode of thought that is essentially non-dualistic. This means that it tends to initiate a mode of thinking that collapses distinctions between opposites. This is very difficult for the Western world that has held opposites, in language and in logic, as the central pillars of civilized thought. In order to understand Zen one must be prepared to question the very foundations of one's life and of the societal influences that affect one. The purpose of Zen is nothing less than total freedom from these dualities of life. In this way, it suggests, we are able to move into a state of mind and reality that is not troubled by anger or fear or by envy and ambition.

At least part of the post quoted here is plagiarized from an article by D.T. Suzuki called "Introduction to Zen Buddhism in America."

In his book Eat Fat Richard Klein points to a "growing awareness that the whole American culture of dieting and rigid exercise is the root cause of the fat explosion." Klein believes that the diet system produces the disease that the system is charged with curing. Fat is decreed to be poison, but the antidote, diet and exercise, makes more fat....There is reason to think that if doctors stopped threatening people about their weight they would be thinner.

Klein's account of why Americans are fat taps into the deep psychology of obsessive behavior. His is a sort of "anti-diet" book, based on the insight that it is in the nature of obsessions to cause us to pursue something in such an excessive way that we not only fail in our quest, but end up producing the opposite of whatever it was we were pursuing in the first place.

The obsessive pursuit of law in contemporary American culture tends to produce a kind of bureaucratized anarchy. The pathological features of American law are themselves symptoms of an often irrational worship of rationality that characterizes much of our public culture. The mania for giving reasons is a kind of widespread cultural syndrome, a product of a neurotic goal. The goal is to rationally resolve social disputes that are not amenable to rational solution, but those suffering from the syndrome have been acculturated to believe both must and can be resolved throught the use of reason.